In Depth

A man who withdrew nearly all of the money in a bank account is personally liable to pay back that money to the bank, the
Indiana Court of Appeals ruled Thursday. The bank had lost a check deposited into the account and the account holder was unable
to help the bank identify the check writer to obtain a replacement check.

James R. Sapp had multiple bank accounts with Flagstar Bank and other banks in and out of state. He deposited $125,000 in
late August 2005 into his account referred to as SF7 that was the account of an LLC he had formed. The check was a cashier’s
check made up of various amounts from other banks paid to some of Sapps’ businesses as well as some unidentified amount
of cash. Almost all of the money was gone from the account 16 days after the deposit; Sapp had deposited $100,000 from the
SF7 account into an account to which only he had access.

In November 2005, Flagstar debited $125,000 from the SF7 account and was only able to recover nearly $2,000. This was after
the bank pressed Sapp to help it identify who issued the previous check in order to obtain a replacement. In 2007, the bank
sued Sapp for breach of contract, theft, conversion and unjust enrichment. The trial court ruled in favor of the bank on its
claims and ordered Sapp to pay attorney fees.

The transaction was not final, as Sapp had argued, because the account agreement states that the account holder agrees to
be liable for any account shortage resulting from a charge or an overdraft. He chose to withdraw funds from the SF7 account
while the provision credit was in place, the COA ruled in James R. Sapp v. Flagstar Bank, FSB, 49A02-1311-PL-935.

“Had Sapp not written any of those checks, the account would still have held the $125,000 provision credit and would
not have been overdrawn when that credit was revoked,” Judge John Baker wrote in finding Sapp liable for the shortage
in the account.

Sapp argued the bank waited too long to notify him the check had been lost and that the transaction had been “finalized”
based on language in the account agreement. The agreement allowed Sapp to withdraw the funds based on the provision credit,
but it also put him on notice that he would be liable for any checks deposited in the account that are unpaid.

The judges upheld the order that Sapp pay the bank’s attorney fees, again citing the account agreement. They also remanded
for the trial court to decide the amount of appellate attorney fees to which Flagstar may be entitled.

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